Technology & Startups

Technology & Startups

Our technology lawyers Perth have assisted many individuals and companies in navigating the challenges of establishing and growing technology businesses. In fact, the firm’s Principals are inventors of granted technology patents and have interests in technology companies.

Technology law is a broad area. A good starting point is to identify and protect any valuable intellectual property. Inventions, algorithms, code and concepts need to be appropriately protected. Different avenues may be taken – patents are expensive and may not be available, or justified, depending on the situation.

The structure of the technology business has long term consequences, including regarding tax, liabilities, compliance, investment and exit.

Raising capital is obviously an important step for most technology businesses, be it venture capital, debt, or a public listing. A balanced and through Shareholders Agreement is essential for multiple shareholders – it will protect the business and avoid future disputes.

Commercialisation of technology involves careful legal consideration. A well-negotiated licensing agreement can be the difference between success and failure.

If your intellectual property is infringed, we have the ability to execute highly complicated litigation, if necessary.

Our technology lawyers Perth can also assist with the many “nuts and bolts” legal aspects of running a technology business.

For example:

A case study – when establishing an online business, new owners often encounter countless obligations, rules, regulations and policies which can be confusing. Failure to understand and comply with these laws can lead to serious consequences including fines, sanctions and, potentially, the failure of the business.

The following nine steps explain some of the issues you will need to deal with:

1)     Determine the legal structure that best suits your business

When starting a new business you must decide what form of business entity will provide you with the greatest benefit. Four key considerations are:

Different business structures have different legal requirements, liability limitations and tax consequences. Commonly new businesses are set up in one of the following ways:

Our startup lawyers can provide you with information on the pros and cons of each entity (and see the Structure document in the Publications section for more information).

2)     Make concrete arrangements with your business partners

Take the time to work out how you and your business partners will interact with one another. Having a clear understanding of your rights and responsibilities will reduce the likelihood of disputes in the future. Importantly, once you all have a clear understanding of your rights and responsibilities, that understanding should be recorded in a legally binding agreement.

Important questions to ask include:

3)     Register your business name

A business name is simply a name or title under which a business trades. It identifies your business to your customers, allows you to differentiate your business from your competitors and enables your customers to make an emotional connection to your business and brand.

If you choose to operate as a company, you will need to register your company name with the Australian Securities and Investments Commission (ASIC). If you want your company to trade under a different name, then you’re also required to register the trading name with ASIC as a business name. If you choose to operate as a sole trader, partnership or a trust, and not as a company, then you will have to register your business name with ASIC. If your business name is your, or your partner’s, first name and surname, then there is no need to register.

It is important to note that registration of a business, company or domain name does not in itself give you any proprietary rights – only a trade mark can give you that protection. For further information on trade marks (and to obtain further information on protecting your ideas, concepts, logo and business generally) see our Intellectual Property Service page.

4)     Register your domain name

Your domain name is the web address you will be using when you trade online (also called a URL, or uniform resource locator). This usually incorporates your business name in some way, for example, www.yourbusinessname.com.au. Like your business name, your domain name is a valuable part of your business identity and is an important marketing tool that can help customers find and identify with your business. In order to protect your domain name it must be registered.

For further information on registering a domain name please contact us.

5)     Registering for tax purposes

You should also consider the impact of Australia’s taxation regime on your business. New businesses need to register for tax purposes. You will need to obtain an ABN, a TFN, and in most cases, register for GST. Depending on the circumstances of the business, you may also need to register for fringe benefits tax, pay as you go (PAYG) withholding tax, and payroll tax.

6)     Business licences and permits

To comply with the law, your business may need specific registrations, licences or permits. Which ones you need will depend on your business structure, its location, whether your business employs staff and the type of business you’re operating.

Our startup lawyers can advise you on your licensing and registration requirements and help you to apply for them.

7)     The fine print

Once the website is designed, and before you go “live”, you will need to sort out your legal documents. These will, in all likelihood, include Terms and Conditions and a Privacy Policy.

Terms and Conditions

Offering goods or services online is, from the point of view of contract law, similar to setting up a shop. You can form a contract online with your customers and you are required to clearly lay out your terms and conditions of trade. These terms should not simply be copied from another website but rather carefully drafted taking into account your type and method of business and the goods and services you are providing.

Some of the key issues commonly covered by terms and conditions are:

Privacy Policy

All businesses regulated by the Privacy Act 1988 must have a privacy policy (those that are not should maintain a policy as a model of best practice). The new Australian Privacy Principle 1 sets out the information that a privacy policy must contain. It maintains the existing obligations to clearly disclose the kind of personal information which an entity collects, how that information is collected, the purposes for which it is collected, and how it may be used or disclosed. In addition, it is now mandatory to include how an individual may complain about a privacy breach, how the entity will deal with such a complaint, whether or not personal information is likely to be transferred overseas, and if possible the countries to which it is likely that personal information will be transferred.

Advertising is another area that can potentially get new online businesses into trouble and in Australia there exists strict anti-spam laws in the form of the Spam Act 2003 (Cth). One key requirement is that business owners must ensure that they have authority from the customer before sending promotional and marketing material by email (or by other electronic means i.e. SMS). There are further requirements that will also need to be considered.

8)     Leasing premises

Before entering into a lease you should consider the following factors:

9)     Insurance

In order to minimise risk, new businesses should consider insurance. Some of the common insurances are:

Beside these standard insurances, you should consider specialised insurance for particular risks facing your business. We recommend that you speak to an insurance broker about your insurance needs and obligations.

Other matters that startup business owners may need to consider include:

Please contact our startup and technology lawyers Perth for assistance.

Subscribe to our e-newsletter

The SAT – reluctant interstate traveller

7th September 2018

Since its inauguration in 2005, the jurisdiction of the State Administrative Tribunal in Western Australia (SAT) has expanded exponentially to include more than 154 pieces of statutory legislation. The appeal of the SAT as a less complex, more informal, less procedurally stringent and expedited manner of dispute resolution has gained momentum and traction among the... read more

Planning approval conditions – are they valid?

24th August 2018

The recent decision of Deputy President, Judge Parry, of the State Administrative Tribunal in Prosser v City of Bunbury [2018] WASAT 41 reminds us of the importance for developers to scrutinise the planning approval conditions imposed, as one or more of the conditions may be unlawful. Local Government may impose various types of planning approval... read more

Riaan Piek

26th March 2018

Introducing Riaan Piek, Litigation Counsel, who recently joined the firm to bolster Fletcher Law’s expanding litigation capacity with his 20 years’ experience as a lawyer advising on risk and the prevention, minimisation, control, balance and management of its consequences. Whilst Riaan has been a commercial litigator for most of his professional life, he has a... read more